Narender alias Nandera vs State of Haryana

Naresh Kumar Sanghi, J.—Challenge in the present appeal is to the judgment of conviction dated 07.04.2005 and the order of sentence dated 08.04.2005 whereby the appellant was held guilty for the offence punishable u/s 20 (b) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced to undergo rigorous imprisonment for a period of two years besides payment of fine of Rs. 20,000/-; in default of payment of fine to further undergo imprisonment for a period of one year. Brief facts of the case are that on 28.10.2003, Sub Inspector Yashpal Singh received a telephonic message that Narender alias Nandera (appellant) was selling charas at Khanpur bus stand and a raid was conducted, he could be apprehended with the contraband. The said information was reduced into writing. Sub Inspector Yashpal Singh along with other accompanying police officials went to village Khanpur in an official vehicle and noticed that the appellant started walking briskly towards his house. On suspicion, he was apprehended and served with a notice Ex.PC with an option to be searched before a Gazetted Officer or a Magistrate. The appellant vide his own writing Ex.PC/1 opted to be searched before a Magistrate. Shri Sanjay Bishnoi, Tehsildar, on request of the police reached the spot and after verifying the facts of the case, directed the Investigating Officer to conduct the search of the accused in accordance with the rules. During search of the appellant, Charas wrapped in a glazed paper was recovered from right side pocket of his pants. Out of which, two samples of 10 grams each were drawn. The samples and the residue charas were sealed with the seal bearing inscription ''SK'' and taken into police possession vide recovery memo Ex.PD.

Sub Inspector Yaspal Singh sent memo (ruqa) Ex.PA to the police station Sadar, Gohana, for registration of the case, on the basis of which, formal FIR, Ex.PJ/1, was recorded by Assistant Sub Inspector Babu Ram.

The appellant, the witnesses and the recovered material were produced before the Station House Officer, Bijender Singh who, in turn, verified the investigation and affixed his own seal bearing inscription ''BS'' on all the sealed parcels. The statements of the witnesses were recorded. The sample was sent for analysis and after completing the formalities of the investigation, report u/s 173, Cr.P.C., was presented for trial of the appellant.

Charge u/s 20 (b) of the NDPS Act was framed against the appellant to which, he pleaded not guilty and claimed trial.

In order to substantiate its allegations, the prosecution examined following 9 witnesses:-

PW-1 SI/SHO Bijender Singh;

PW-2 ASI Babu Ram;

PW-3 Constable Sant Lal;

PW-4 ASI Parvesh Kumar;

PW-5 ASI Jagdish Rai;

PW-6 MHC Azad Singh;

PW-7 HC Jagat Ram;

SI Yashpal Singh; and

Tehsildar Shri Sanjay Kumar Bishnoi.

After closure of the prosecution evidence, the statement of the appellant in terms of Section 313, Cr.P.C. was recorded wherein, he refuted the allegations emerging against him and without leading any evidence closed his defence.

After hearing learned counsel for the parties, learned trial court held the appellant guilty for the offence punishable u/s 20(b) of the NDPS Act and sentenced him to undergo rigorous imprisonment for a period of two years besides payment of fine of Rs. 20,000/-; in default of payment of fine, to further undergo imprisonment for a period of one year.

At the very out set, learned counsel for the appellant has proposed not to assail the appeal on merit. However, he submits that keeping in view the totality of the circumstances of the case, the sentence awarded to the appellant is on higher side. To substantiate his submissions, he submits that the appellant is not a previous convict. He is neither required nor involved in any other case. He further submits that the alleged recovery of the contraband as effected in the year 2003 and since then the appellant is facing the agony of trial and appeal. He further submits that the appellant is a young man and has a wife and children to maintain. He further submits that during the course of trial and appeal, the appellant was released on bail but he (appellant) did not misuse the said concession. On the strength of the above, learned counsel submitted that the appellant has already suffered incarceration for approximately two months and as such his sentence be reduced to the period already undergone.

On the other hand, learned counsel for the State has opposed the prayer made by learned counsel for the appellant and submits that the learned trial court has already taken a lenient view, therefore, the judgment of conviction and sentence passed by learned trial court be maintained.

Heard.

Though, the learned counsel for the appellant has proposed not to argue the appeal on merit but still to satisfy myself, I have perused the material available on record and find that the learned trial court has rightly convicted the appellant for the offence punishable u/s 20(b) of the NDPS Act, therefore, there is no infirmity in the judgment of conviction of the appellant. However, I find force in the submissions of the learned counsel of the appellant that keeping in view the totality of the circumstances of the case, the substantive sentence awarded to the appellant is on higher side. The contraband recovered from the appellant was of non-commercial quantity. The appellant has already faced the agony of trial and appeal for approximately nine years. The appellant is neither required nor involved in any other case. During the course of trial and appeal, he was released on bail but the said concession was not misused by him.

Taking into consideration all the factors, it is deemed appropriate to reduce the substantive sentence of rigorous imprisonment to four months. The fine imposed by the learned trial court shall remain undisturbed. However, in default of payment of fine the appellant shall undergo further rigorous imprisonment for two months.

Accordingly, the appellant be re-arrested to serve the remaining part of the sentence of imprisonment awarded to him today. The appeal is partly allowed.